of what many North Carolina communities consider their most beautiful neighborhoods.
This article describes the ways in which North Carolina communities may stay green by preserving existing tree cover during and after the land development process. It begins by noting some of the reasons why trees should be preserved, then explores the variety of tree preservation approaches used in North Carolina, and concludes by discussing the hallmarks of effective tree protection regulations. It is intended as a tool for local governments or land use practitioners who are considering adopting or revising tree protection regulations. The article helps to explain the importance of tree protection, highlights strategies other local governments have adopted to protect tree cover, and illustrates some of the basic elements found in effective tree protection regulations.
Staying Green: Local Tree Protection
Ordinances in North Carolina
Chad Meadows, AICP
Stephen Sizemore, AICP
With greater urgency, communities are realizing the need for sustainable development practices that help
to address climate change, limit dependence on foreign fuel sources, support healthy lifestyles, and better
protect natural resources for future generations. Regulatory requirements that protect and retain existing
trees during and after the development process are some of the most cost-effective methods for communities
to be more sustainable. This article enumerates many of the benefits of tree protection, including lower
energy costs through shading and reduced greenhouse gases through carbon sequestration. It surveys the
wide variety of tree protection strategies (mandatory, voluntary, and incentive-based) used by more than
100 local and county governments across North Carolina, and it describes the hallmarks of an effective tree
protection ordinance. Given the state’s growth trajectory and the public’s heightened recognition of the need
for more sustainable development practices, tree protection standards are likely to become more prevalent
and comprehensive in the future.
Chad Meadows, AICP, is a Senior Associate at Clarion Associates in Chapel Hill and has prepared numerous tree protection ordinances across the southeast.
Stephen Sizemore, AICP, is a Senior Associate at Clarion Associates with 30 years of experience with planning issues; he is a member of the North Carolina State Bar.
Introduction
For much of North Carolina’s history, trees have made up a major component of the state’s economy, providing a broad range of forest products such as lumber, furniture, and paper. In fact, the state’s “Tar Heel” nickname derives from the extensive production of pitch in colonial North Carolina. In more recent times, as growth and development have come to the state, trees remain important, but no longer as a commodity for harvest. Trees are now coming to be seen as a natural resource vital to our state’s ecology and quality of life, especially in urban areas.
More and more, communities are realizing the need for sustainable development practices that help to address climate change, reduce dependence on foreign fuel sources, support healthy lifestyles, and better protect environmental resources. One of the most cost-effective and practical ways to encourage sustainable development patterns is the retention and protection of existing tree cover during and after the development process. Trees absorb pollutants and provide oxygen, shade, habitat, and privacy.
Why Protect Trees?
Trees provide many varied benefits to a community. Some are tangible and others are intangible, but all are significant and constitute ample reason for a community to preserve and protect existing trees. Such benefits include an assortment of environmental, visual and aesthetic, health and lifestyle, and economic benefits.1 Although newly-planted trees can yield some of the advantages briefly noted below, preserving and protecting healthy and mature trees represent much more cost-effective means of achieving these benefits and complying with the landscaping and buffer requirements commonly found in development regulations.
Environmental Benefits
Remove Air Pollutants: Through photosynthesis, trees efficiently remove carbon dioxide, nitrogen dioxide, sulfur dioxide, ozone, and other pollutant gases from the air, and help dilute concentrations of these pollutants by producing oxygen (Nowak, 2007). One acre of forest is capable of absorbing six tons of carbon dioxide and releasing four tons of oxygen in a year (Cusimano and Bardsley, 2009). The carbon sequestration provided by trees is also important in mitigating climate change.
Improve Water Quality: Trees provide an effective means of reducing sediment and pollutants entering surface and groundwater through erosion and stormwater runoff. Tree leaves and branches intercept and disperse rainfall, helping to reduce the volume of runoff, while fallen leaves and root systems help absorb rainfall and slow surface water flow. Trees also stabilize the soil, preventing erosion.
Moderate Microclimate and Conserve Energy: Used as windbreaks, trees block winter winds that increase the heating demands for buildings. In summer, trees can substantially reduce air-conditioning demands by shading buildings and adjacent surfaces and by lowering ambient air temperatures through transpiration.
Provide Wildlife Habitat: The elimination of trees as habitats for birds, mammals, and other wildlife, particularly in connective migration corridors, is a main reason for the decline of bird and other wildlife populations.
Buffer Noise: Excessive or undesirable sounds, whether from street traffic or adjacent land uses and activities, can have adverse physical and psychological effects on community residents. Trees help ameliorate noise by absorbing and deflecting sound via tree leaves, branches, and trunks.
Tree Retention During Redevelopment. Existing mature trees can be retained
and integrated as focal points of a neighborhood’s design, such as in New Port, a five-year-old traditional neighborhood development built on vacated military land in Portsmouth, Va. Photo courtesy of Chad Meadows.
Visual and Aesthetic Benefits
Provide Human Scale to Urban Environments: Trees can break up the visual impact of large structures and open areas such as parking lots. They make the scale of the urban environment more human and more comfortable for pedestrian activity, helping to promote interpersonal interaction.
Create Civic Identity and Special Places: As the economy has become more globalized, new development is more dominated by look-alike chain restaurants, stores, and shopping centers. Communities therefore increasingly seek ways to create places with a special character that are inviting and provide a break from the modern urban environment. Residents’ and visitors’ impressions of the value of a community are often shaped by the sense of beauty and quality derived from its tree-lined streets and its wooded parks, hillsides, and riverfronts.
Economic Benefits
Reduce Costs: The environmental and health benefits noted above translate into direct cost savings – for developers, building occupants, and the community as a whole. A U.S. EPA study found that shade trees and vegetation can reduce air conditioning costs by 15 to 35 percent (Duerksen and Richman, 1993). A 2003 ecosystem analysis of the Charlotte/Mecklenburg County metropolitan area found that trees removed air pollutants at a rate that would otherwise cost approximately $43.8 million a year, and the reduced need for stormwater infrastructure saved $1.87 billion (USDA Forest Service and American Forests, 2003).
Increase Property Values: Numerous studies have shown that people are willing to pay more for properties with trees. For example, the U.S. Forest Service reports that healthy, mature trees add between 10 and 23 percent to a property’s value (USDA Forest Service, 1993).
Stimulate Economic Development: According to studies, shoppers are more attracted to retail areas with trees (Wolf, 2004). Furthermore, they are more likely to stay longer, visit often, and pay a premium for goods. The attractiveness of a community and the quality of life it offers are key factors in the locational decisions made by business executives; often these qualitative aspects are more important than quantifiable factors such as tax rates.
Local Tree Preservation Regulations in North Carolina Interestingly, tree preservation regulations are fairly common among local governments in North Carolina. Based on a random review of many of the tree protection provisions identified by the North Carolina Cooperative Extension Service,2 there are well over 125 municipalities and more than 20 counties that require new development to preserve existing trees during the development process. In several cases, these standards require tree protection at levels beyond those afforded through disturbance limitations in riparian buffers or general landscaping requirements.
Research completed as part of this article reveals that tree preservation regulations are not exclusive to large or fast-growing communities, nor are they limited to communities with highly sophisticated regulatory systems. Numerous small communities, many with only rudimentary zoning regulations, have adopted and are applying tree preservation regulations; therefore, numerous approaches are in use across the state. The following paragraphs outline the distinctions between the types of trees being protected, the philosophical approach to regulation (whether mandatory, voluntary, or incentivized), and some of the implementation tools in use. This article will not address tree protection requirements associated with minimum state or federal requirements for water quality protection, stormwater management, or habitat protection, since these trees would be protected regardless of local regulatory conditions.3
Types of Trees Protected
Existing Tree Canopy: Some regulations require the preservation of a specified percentage of a development site’s existing tree cover during and after the development process. Mooresville, for example, requires retention of specified minimum percentages of existing tree canopy, with a sliding scale of percentages ranging from 12 to 54 percent, based on the site’s zoning and the proportion of the site covered by existing tree canopy. Similar requirements, with different percentages and bases, are found in Marshville, Matthews, and Waxhaw. In many cases, these types of regulations use a priority order in determining which portions of the existing canopy cover should be retained versus which may be removed.
A number of regulations require new development to preserve all existing trees above a specified size threshold, or in specified categories, but allow the removal of existing trees as necessary to accommodate the proposed development. The term “as necessary” is often interpreted broadly,4 though some jurisdictions only allow tree removal as needed for “essential site improvements” (e.g., Cedar Point and Wilmington) or where there are no other alternatives (e.g., Duck and Mineral Springs).
Many regulations – like those in Charlotte (for single-family development), Chapel Hill, Durham, Duck, Garner, and Knightdale – require new development to achieve tree cover on a minimum percentage of a development site, but allow the tree cover requirements to be achieved by either retaining existing trees or planting replacement trees.
Large or Specified Categories of Trees: A common type of tree preservation regulation prohibits the removal or requires retention of existing trees larger than a specified size or of a specified category. Size thresholds sometimes vary by type of tree (e.g., canopy vs. understory), and range from as little as a three-inch diameter (for highly ornamental trees in Brevard) to as large as a 30-inch diameter (for evergreen trees in Garner). Most diameter thresholds range from 12 to 18 inches for canopy trees.5 This type of regulation is generally applied to certain categories of trees or in certain areas.
Some regulations protect categories of trees, like “specimen,” “champion,” “heritage,” “significant,” or other third-party designations (e.g., Fuquay-Varina’s heritage trees include “rare species listed under the North Carolina Natural Heritage Program”).6 Other regulations specifically define the categories to be protected with species lists and size thresholds (e.g., Chapel Hill’s specimen trees and rare trees, Wilmington’s significant trees), or by tree type and size thresholds.
areas, the presence of trees significantly helps to control floodwaters, protect water quality, and stabilize soils.
Trees Along Site Perimeters or in Setbacks: Some regulations approach tree preservation from the perspective that existing trees may provide superior buffering, compared with planted vegetation. The regulations require preservation of trees within specified areas during and after the development process. In most cases, these areas include street frontages (e.g., Ocean Isle Beach, Perquimans County, Raleigh, Wake Forest, Waxhaw), areas within a specified distance of a site boundary (e.g., Cary, Greenville, Morehead City, Wake County), or areas within required setbacks (e.g., Belville, Brevard, Charlotte, Kernersville, Mineral Springs).
Given the variety of standards, modern tree protection provisions are beginning to use a blended approach, combining two or more protection standards at a time.
Approaches to Regulation
There are several different approaches to tree protection used by local governments across the state. In some cases, tree protection is mandatory; in others it is voluntary; still others use incentives to make tree protection more attractive; and some jurisdictions use blended approaches. Regardless of the approach used, all of the tree preservation regulations reviewed apply only to new development and to expansions of existing development (e.g., Fletcher, Mineral Springs, Mooresville, Waxhaw). The following sections describe the differing approaches to tree protection from local jurisdictions across the state.
Mandatory Preservation: Most of the local governments with special enabling legislation have mandatory tree protection standards, though several (Belmont, Burlington, Carrboro, Greensboro, Mooresville) mandate tree protection without special legislation.
One of the key issues among ordinances with mandatory provisions is the range of developments or activities that are exempted from the regulations. Some
activities, like farming or forestry, are often exempted, as well as the following types of activities:
•
Removal of dead, dying, diseased, or pest-infested trees – sometimes with caveats that such trees pose a danger to human life or property (Archdale), or are diseased beyond treatment (Chapel Hill), or are infested so as to pose a risk to adjacent trees (Greenville);•
Removal of trees as necessary for the installation, maintenance, and repair of utilities;•
Routine maintenance of landscaping and yards (e.g., pruning, clearing of undergrowth);•
Minor clearing for line-of-site surveying;•
Removal of trees identified as non-native invasive or nuisance species – sometimes listed (Chapel Hill);•
Removal of trees grown as part of plant nursery orgreenhouse operations;
•
Removal of trees as necessary to provide access to and from a property; and•
Removal or pruning of trees as necessary to provide clear visibility at street and driveway intersections. A number of communities exempt single-family lot development from their tree preservation regulations (Brevard, China Grove, Eden, Fuquay-Varina, Marvin, Saint James). Although Charlotte exempts single-family development from its heritage tree preservation requirements, it applies its tree save requirements (that existing trees be preserved on at least 10 percent of the site area) only to single-family developments. Asheville applies its tree save area requirements only to multi-family developments and subdivisions with at least eight units or lots. Also, several communities exempt or expressly do not apply such regulations to the development of parcels less than a specified size, such as one acre (New Hanover County), two acres (Greenville, Knightdale, Raleigh), five acres (Waxhaw), or 10 acres (Marshville, Marvin).Is special authorization from the N.C. state legislature necessary to adopt tree protection ordinances?
Approximately 30 communities in North Carolina have obtained special legislation to protect trees, but the majority of the more than 140 communities with tree protection standards adopted them without special authority.
Until the state legislature or courts clarify the matter, the question of whether local governments have sufficient authority to enact tree preservation regulations remains an open and debatable issue. State courts tend to take a relatively narrow view of the statutes’ broad construction directives, and they have been reluctant to recognize authority for those types of development regulations that “push the envelope” (especially if they involve fees). On the other hand, the courts have recognized a number of now commonplace zoning tools (e.g., special-use permits, conditional-use zoning) long before they were expressly authorized by legislation.
Preservation Where Practicable, Feasible, and/or Reasonable: Some communities require tree preservation only if compliance is “practicable,” “practical” (Bermuda Run, Carolina Beach, Chapel Hill), or “feasible” (Albemarle, Belmont, Davidson, Franklinville), or would not “unreasonably burden” development (Aberdeen, Blowing Rock, Carrboro, Edenton). Unfortunately, many of these regulations provide little or no guidance on determining when compliance is or is not practicable, practical, feasible, or an unreasonable burden. Aberdeen and Edenton provide that an unreasonable burden exists if compliance requires a substantial alteration of the location of proposed improvements, or if compliance mandates activities that impose an “unreasonable hardship” on the developer. Davidson and Franklinville call for the determination to be made jointly by the developer, design team, and the planning director/planning board.
Voluntary Preservation: A number of tree preservation regulations in North Carolina do not require tree preservation – rather, they “encourage” developments to preserve existing trees. Some encourage use of existing trees to meet landscaping or buffer requirements (e.g., Angier, Beech Mountain, China Grove, Franklin, Garner) and stormwater management requirements (e.g., Belville). Some encourage the saving of existing trees in general (e.g., Apex), while others are a little more specific – e.g., encouraging owners of single- and two-family homes to retain or plant one tree per 2,000 square feet of lot area (Carolina Beach), or encouraging developers to preserve existing trees and vegetation in floodplains, stream buffers, wetlands, and areas with steep slopes (Fletcher). Banner Elk “strongly encourages” developers to design building footprints to avoid the removal of significant trees.
In general, regulations encouraging tree preservation – no matter how specific they are or how much they emphasize the related benefits – rely entirely on the agreement and goodwill of the developer to be effective. These regulations are effective only to the extent that the developer believes preserving trees will not increase development costs or decrease profitability. Some communities that encourage tree preservation seek to tip the developer’s balancing of the pros and cons of tree preservation by adding tangible incentives.
Incentives: A number of communities allow tree preservation areas to count towards landscaping, buffer, and open space requirements when tree preservation locations coincide with the proposed locations of these site features. Some go further and either allow tree preservation areas to be credited towards landscaping, buffer, and open space standards wherever located, or provide “bonus” credits towards meeting landscaping and buffer requirements (e.g., Boone, Franklin, Matthew, Wake Forest). For example, Franklin provides a scale of credits: preservation of one existing tree with a caliper of two to six inches counts as one tree in meeting buffer requirements, while preservation of one existing tree with a caliper greater than 25 inches counts as five trees in meeting buffer requirements.
A few communities (e.g., Apex, Cary, Garner, Mooresville, Wake Forest) encourage tree preservation beyond minimum requirements by permitting a reduction in the number of off-street parking spaces normally required (limited to five, 15, or 20 percent of total required spaces). Wake Forest allows reduced minimum lot area standards for extra tree save areas in single-family developments. Charlotte is perhaps the most aggressive in providing incentives – encouraging developers to increase the tree save area by allowing reduced minimum setbacks, applying cluster lot standards (including reduced minimum lot area, lot width, and setback standards), and providing a density bonus proportional to the tree save area.
Implementation Tools
Tree preservation regulations in North Carolina use a wide variety of administrative mechanisms to apply and enforce their requirements. Some use an independent tree removal permit (or tree conservation or tree disturbance permit) (e.g., Albemarle, Archdale, Cedar Point, China Grove, Duck, Greensboro, Marvin, Mooresville, Saint James, Waxhaw, Wilmington). Other communities rely on generally applicable development permits and review procedures. A number of communities require developers to prepare and submit a tree preservation plan (or tree protection, tree management, or landscape protection plan) that shows where preservation and protection of existing trees is required (e.g., Albemarle, Angier, Archdale, Bermuda Run, Chapel Hill, Charlotte, China Grove, Duck, Greensboro, Marshville, Marvin, Mineral Springs, Saint James, Troutman, Waxhaw). Most others require that compliance with tree preservation standards be shown on generally required site plans or landscape plans. A tree survey (or inventory or assessment) is required as the starting point for determining how tree preservation regulations apply to a development site (e.g., Apex, Boone, Cary, Charlotte, Chimney Rock, China Grove, Durham, Marvin, Matthews, Mooresville, Raleigh, Wake Forest, Wilmington). Regulations generally require tree surveys to show all regulated trees (as defined by size, species, or location), including individual trees – though provision may be made for showing stands of trees instead of individual trees (Mooresville) and for using aerial photos to depict tree canopy (Matthews, Mooresville, Raleigh).
Brunswick County, Havelock, Kernersville, Knightdale, Matthews, Mooresville, Rocky Mount).
Trees Inside Designated Tree Conservation or Save Areas: A considerable number of tree preservation regulations requires new developments to designate tree protection, conservation, preservation, or save areas or zones. However they are named, these are areas delineated by the developer to show which existing trees are to be retained and protected. Some of these regulations define tree conservation/save areas in terms of retention requirements – i.e., those areas necessary to meet minimum tree canopy or tree density requirements, or to incorporate specimen trees that must be retained, or to include natural areas or site perimeter areas in which existing trees must be retained (e.g., Archdale, Brevard, Charlotte, Durham, Fletcher, Knightdale, Marshville, Mineral Springs, Mooresville, Raleigh, Wake Forest, Waxhaw). Other regulations largely leave designation of tree conservation/save areas up to the developer, using the designation primarily as a means of identifying where trees are to be protected from development activities (e.g., Asheville, Bermuda Run, Cary, Graham, Greensboro).
Protection of Trees During Construction: As noted above, some communities require the designation and delineation of tree protection zones (TPZs) as a means of identifying where protective measures are applicable during construction.
Many regulations prohibit activities within a tree protection area or a critical root zone around those trees to be protected. Such areas are commonly defined by the tree’s drip line or by a set radius from the tree trunk equal to one foot per inch of tree diameter. Tree protection regulations typically require the placement of protective fencing around the perimeter of this area (sometimes required to be made of wood, although plastic is more common) and prohibit land disturbances within the area, particularly grading, filling, driving or parking of vehicles or machinery, storage of debris or materials, stockpiling of soil, and disposal of concrete washout, oil, paint, chemicals, or other hazardous materials. Trenching and excavation for utility lines is generally prohibited, but some regulations allow underground tunneling or directional boring where the location of utility lines within the protection area or critical root zone is unavoidable; they may even allow trenching with root pruning as a last resort (e.g., Greensboro, Wake Forest). Some regulations allow sidewalks or other paved areas to encroach into tree protection areas and critical root zones, but generally limit the paved area to no more than 10 percent of the area or zone (e.g., Rocky Mount).
Limitations on Pre-Development Clear-Cutting: The first line of defense in preserving and protecting existing trees is to prohibit clear-cutting on a development site before plans for the development are approved, or at least before issuing a tree removal permit.
A number of North Carolina communities have adopted regulations that regulate clear-cutting before development. A few expressly prohibit any clearing
without a permit of a site subject to tree preservation regulations (e.g., Albemarle, Atlantic Beach, Carolina Beach, Cary, Chapel Hill, Fuquay-Varina, Marshville). Most either prohibit clearing but exempt agricultural and forestry activities, or prohibit clearing in anticipation of development.7
Those that prohibit any clearing, even for forestry activities, may be effectively limited by legislation adopted in 2005 that basically exempts legitimate forestry activities from local government regulation, but retains local government control over activities associated with development (see text box on page 16). In some communities (e.g., Eden, Garner, Greenville), tree preservation/protection regulations adopted or amended in recent years incorporate language from the 2005 legislation, including provisions that define exempted forestry activities in terms of being subject to forestry management plans and allow the community to defer development approvals of a site cleared of regulated trees for a period of years after the clearing.
As mentioned previously, there is a wide diversity of tree protection standards in place across the state. As interest in sustainability and quality of life grows, it is likely that more and more local jurisdictions will be adopting tree protection standards. The next section details three basic hallmarks of an effective tree protection ordinance.
Hallmarks of Effective Tree Preservation Ordinances
Despite the variety of differences between tree protection approaches used by local governments across the state and the nation, there are several basic tenets of a good tree protection ordinance, namely: predictability, consistency, and flexibility. The following section discusses each of these hallmarks and provides examples of how they can be integrated into tree protection provisions.
Predictability
To be effective, tree protection ordinances must result in predictable outcomes for development professionals, lay persons, governmental officials, and the courts. In many cases, applicants proposing development are willing to comply with tree protection standards, as long as the requirements are clearly explained and applied in a consistent, prescribed manner. Effective tree protection ordinances provide predictability through several methods: use of plain English (not jargon); clear purpose and intent statements; comprehensive applicability and exemption provisions; clear procedural descriptions; clear, quantitative standards; and a thorough description of violation and enforcement provisions.
Purpose and Intent: A clear set of purpose and intent statements is critical. Having an idea of the local government’s intent is important when considering unique situations or alternative forms of compliance. Purpose statements need to be in accordance with enabling legislation, special legislation (if applicable), and adopted local policy guidance. Purpose and intent statement sections should list the various benefits of tree protection, and should specify that the standards are intended to identify and preserve the highest value trees during and/or after the development process.
Applicability and Exemptions: These provisions are perhaps the most important since they establish who must comply with the standards and who is exempted. They must also identify the trees subject to the regulation. For example, tree canopy retention is often applied to significant existing vegetation exceeding a minimum size threshold (e.g., eight inches in diameter). Specimen tree protection is also extended to trees of a certain minimum size or quality threshold. Common exemptions include: farming and forestry, development in urban districts/ areas, removal of nuisance/invasive trees, removal of safety hazards, and utility/rights-of-way maintenance. The applicability provisions should also clarify if clear- cutting (in anticipation of development and outside normal farm or forestry activities) is subject to the tree protection standards.
Voluntary versus Mandatory Compliance: Mandatory standards result in greater predictability than voluntary standards, but they may not be consistent with political will. Mandatory standards may also make incentives more attractive than they would otherwise be under a voluntary system. Providing credit towards other development requirements like open space or landscaping can help address developers’ concerns related to project costs.
Clear and Logical Procedures: Effective tree protection regulations include thorough descriptions of the timing and procedure for compliance review, as well as the appeal process for applicants or other persons with standing. In some cases, there may be procedural differences, such as the issuance of a tree removal permit for tree removal activities proposed outside of the development process (clear cutting), versus review for compliance with tree standards as part of the site plan or subdivision approval process. Post-decision procedures, such as pre-construction inspections, mitigation in case of violations, and performance guarantees for replacement trees, should also be explained.
Clear Standards: Effective tree ordinances employ clear, measurable standards for determining the required location and quantity of trees to be retained during and after the development process. Standards also differ in terms of the type of tree protection involved. Tree canopy retention standards call for a percentage of the canopy cover Trees as Screening. Trees can provide effective screening of multi-story buildings and can soften the appearance of service and
to be retained, or for a minimum tree density per unit of development area to be retained. Specimen or significant tree retention requirements establish a minimum size or quality standard (for both canopy and understory trees). Tree protection standards tied to a location (like wetlands or steep slopes) apply locational criteria.
Enforcement: The enforcement process should be clearly explained. Many effective tree protection ordinances establish tree protection zones around existing trees to be retained, and enforcement actions are applied to violations occurring within a recognized tree protection zone. In addition, enforcement provisions must address pre-development preparations (e.g., installation of tree protection fencing), the construction process (limitations on excavation, storage, and operations within a tree protection zone), and long-term maintenance/protection of retained trees (through inspections requirements and mitigation regimens applied when trees must be replaced).
Discussion of Violations: The ordinance should clearly describe actions that constitute violations, and the remedies available for addressing such violations. Violation provisions should distinguish between accidental and deliberate damage or removal of trees. The violation provisions should also establish fines and civil and criminal penalties (if applicable), and emphasize mitigation over cash payments. The section should also set out the range of remedies available to the jurisdiction in enforcing the standards, such as development approval revocation or delay, requirements for accelerated landscaping provision (e.g., increased minimum counts or minimum sizes at time of planting), and modified procedural requirements, such as requirements for public hearings for development proposed subsequent to a tree protection violation.
Consistency
Consistency is the second hallmark of an effective tree protection ordinance. Not only should tree protection regulations be internally consistent, but they should also be consistent with political realities and enforcement capacity. The following paragraphs discuss the importance of consistency with other documents and local conditions.
With Policy Guidance: Maintaining consistency with the policy guidance found in the comprehensive plan is of the utmost importance for maintaining relevancy with the wishes of the public and the legal defensibility of the courts. The law also requires consistency with relevant state and local requirements, such as those related to water quality or stormwater management. Regulations not well grounded in policy support could be more likely to be overturned during judicial interpretation.
With Political Realities: Tree protection provisions must be developed and implemented in accordance with the political realities within a local community. This is of particular importance when considering remedies for violation of tree protection provisions. Regular waivers or modifications to tree protection requirements or remedies for violations can make application of the standards
less predictable and result in more confusion on the part of developers and citizens. It may be necessary to periodically review tree protection provisions with elected and appointed officials to ensure that support for the provisions still exists.
With Enforcement Capacity: It is important to tailor tree protection provisions to a jurisdiction’s capacity to enforce the standards. There may be strong policy guidance and political will for comprehensive tree protection standards, but the ultimate approach or scope of the regulations may be determined by enforcement capacity. The least ideal situation is to discover that enforcement capacity is insufficient after adopting new tree protection standards.
With Other Development Standards: Effective tree protection ordinances are well-integrated with and mutually supportive of other development regulations, such as landscaping requirements, open space provisions, resource protection standards, and setback requirements. In most cases, retained trees are credited toward landscaping requirements, but seldom is land occupied by tree save areas credited toward open space lands. Crediting provisions related to use of existing trees for landscaping and minimum development setbacks must be coordinated to ensure root zones associated with retained vegetation are sufficient after the development process. Several ordinances used in the state do not allow tree save areas to be located within individual platted lots. This helps ensure that required trees are not inadvertently removed or damaged by an individual homeowner, and allows the tree save area to be treated as common open space.
With Natural Conditions: By necessity, tree protection regulations should differ from place to place in terms of the types of trees protected, minimum size or quality thresholds, and percentage retained. It is very common for specimen, champion, or significant tree protection preservations to exclude certain types of trees from minimum size or quality thresholds (e.g., yellow pine, Bradford pear, cottonwood, mulberry) based upon their prevalence or status as nuisance trees.
Flexibility
Effective tree protection regulations do not include contingencies or differing standards capable of addressing every unique situation or condition. Instead, effective regulations typically include provisions that allow alternative forms of compliance, mitigation, and a process for addressing unexpected conditions or unanticipated conflicts. Incentives for tree protection, especially when offered as part of a mandatory tree preservation approach, are also a means for building flexibility into development regulations.
credit towards minimum landscaping requirements when existing trees are retained and integrated into required landscaping areas. Other ordinances take incentives one step further, and allow a reduction to some development standards like setbacks or parking standards when doing so allows existing trees to be retained after the development process. As part of recent efforts to incorporate greater sustainability into development codes, some ordinances include incentives for increased height, density, or intensity for developments that meet or exceed tree retention percentage targets.
Conclusion
Tree protection requirements are somewhat widespread in North Carolina and are becoming even more common as residents call for more sustainable development patterns and better environmental protection. There are numerous reasons to protect trees, including the need to better address climate change, the need to reduce dependence on foreign energy sources, and the desire to increase overall livability within our communities. Retention of existing trees is one of the most cost-effective means available to local governments to address these issues.
There is a wide variety of approaches to tree preservation in use across the state, including mandatory, voluntary, and incentive-based approaches. More voluntary than mandatory regulations are in use, but mandatory systems are more predictable and create a more favorable climate for the use of incentives. Blended approaches that incorporate protection for different types including administrative adjustments (minor variations
to standards approved administratively) or alternative landscaping plans that allow development to depart from some minimum standards in favor of a higher overall quality of development than would otherwise result. Some ordinances also allow payment of a fee in lieu of compliance whereby the jurisdiction uses the money for other tree protection/maintenance activities.
Mitigation: Mandatory tree protection standards should always allow mitigation, subject to specific approval criteria, as a means of retaining flexibility to adapt to unique conditions. Mitigation takes many forms, and is usually different based upon the type of tree preservation provisions used by a local jurisdiction. For example, standards requiring retention of a portion the existing tree canopy cover often allow reforestation or planting of replacement trees following removal of existing ones. This is especially common on sites subject to substantial grading or topographic change. A similar mitigation alternative is to allow off-site planting of required replacement trees in cases where the land area is insufficient to accommodate the volume of tree growth anticipated from the replacement trees. In these situations, some ordinances allow replanting to take place within adjacent rights-of-way or other nearby public areas. Other ordinances allow funds to be deposited into the jurisdiction’s “tree bank,” or fund, for the purposes of increasing tree cover. This is a useful approach in communities built out prior to the establishment of tree protection standards.
Incentives: Incentives are an excellent way to promote compliance rates. Some ordinances provide accelerated
Trees along Waterways. In Raleigh, N.C., tree protection measures such as fencing are undertaken. Standards for tree protection
of trees (e.g., tree canopy retention standards, specimen tree protection standards), mandatory minimum standards, and a meaningful set of incentives have the best chance for success. Interestingly, most local governments with tree protection provisions do not have special authorization, but the issue of the need for special authorization has not yet been decided by the courts.
There are three primary hallmarks for an effective tree protection ordinance: predictability, consistency, and flexibility. Effective tree protection ordinances produce predictable outcomes and are based upon clear applicability statements, logical and comprehensive procedures, and quantifiable standards. They are most effective when designed in accordance with the political will and the available enforcement capacity (in addition to long-range policy guidance). The inclusion of flexibility mechanisms like mitigation and alternative forms of compliance help limit unanticipated consequences and make it easier for the communities’ tree protection goals to be met.
Given the state’s growth trajectory and the public’s increasing desire to limit negative environmental impacts from development, tree preservation regulations are likely to become even more commonplace, sophisticated, and effective.
References
Cusimano, Mike, and Roger Bardsley. 2009. Guilford County Tree Canopy Study, 2. City of Greensboro (Retrieved December 15, 2009). http://www greensboro-nc.gov/NR/rdonlyres/7E4DC436-2F90-4820-84E4-35350808E785/0/FinalReport.pdf. Duerksen, Christopher, and Suzanne Richman. 1993.
Tree Conservation Ordinances: Land-Use Regulations Go Green. Planning Advisory Board Report 446, 12. Chicago: American Planning Association.
Nowak, David J. 2007. The Effect of Urban Trees on Air Quality. USDA Forest Service. Syracuse, N.Y. USDA Forest Service. 1993. A Technical Guide
to Urban Community Forestry: Urban and Community Forestry: Improving Our Quality of Life. http://www. na.fs.fed.us/Spfo/pubs/uf/techguide/toc.htm
USDA Forest Service and American Forests. 2003. Urban Ecosystem Analysis: Mecklenburg County, North Carolina. http://www.americanforests.org/ downloads/rea/AF_Charlotte.pdf
Wolf, Kathleen L. 2004. Nature in the Retail Environment: Comparing Consumer and Business Response to Urban Forest Conditions. Landscape Journal 23:1, 40-51.
Endnotes
1 For further information about the benefits of trees, see the links at http://www.treelink.org/linx/?navSubCatRef=56. 2 See the North Carolina Cooperative Extension Service’s resources on tree protection ordinances at (www.ces.ncsu. edu/nreos/forest/ordinance).
3 A number of communities have regulations that require preservation of trees within specified natural areas to meet state mandates for protection of water quality in water supply watersheds and certain major river basins (e.g., Neuse, Tar-Pamlico, and Catawba), as well as federal mandates for stormwater management programs. Most often, these take the form of regulations requiring the preservation of vegetated buffers along rivers, streams, and lakes. Such regulations may be incorporated into local development regulations or may exist within an independent set of watershed protection or stormwater management regulations. Existing trees within these riparian buffers, which may extend 50 to 200 feet from the surface water, are generally required to be retained, though minor disturbance for public improvements, undergrowth clearing, and selective timbering may be allowed.
4 See the development regulations for Beech Mountain, Belville, Eden, Granite Falls, Kannapolis, and Seven Devils.
